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2004 DIGILAW 269 (ALL)

RAM KRISHNA v. IIND ADDL DISTRICT JUDGE FATEHPUR

2004-02-12

ASHOK BHUSHAN

body2004
ASHOK BHUSHAN, J. Heard Shri Haider Hussain, Counsel for the petitioners and Shri Srikant appearing for respondents. 2. By this writ petition the petitioners have prayed for quashing the order dated 5-7-1984 (Annexure-3 to the writ petition) passed by 2nd Additional District Judge, Fatehpur in revision filed against the order of trial Court dated 22-10-1983. Brief facts necessary for appreciating the controversy between the parties is as follows : 3. A suit No. 399 of 1979 was filed by the petitioner-plaintiffs against the defendant-respondents. Suit was dismissed in default by the order dated 28-3-1981. Plaintiffs moved an application for restoration of the suit under Order 9 Rule 9 of Code of Civil Procedure on which Misc. Case No. 38 of 1981 was registered which too stood dismissed for default on 5-5-1981. Application 4-C was filed for setting aside, the order dated 5-5-1981 which was rejected on 24-5-1982. Against the order dated 24-5-1982 a Civil Appeal No. 21 of 1982 was filed which appeal was allowed by the appellate Court vide its order dated 29-11-1982. The order of the trial Court rejecting the restoration application was set-aside the appellate Court further directed for allowing the restoration of Misc. Case No. 38 of 1981 on payment of Rs. 30 as cost which was required to be paid within 15 days. After the order dated 29-11-1982 of the appellate Court, the records were sent to the trial Court. In the trial Court an application was filed by the plaintiffs praying for extension of time for deposit of cost of Rs. 30. The case of the applicant was that amount of cost was paid but since there was no endorsement made in the file, the applicant has no option but to pray for extension of time for depositing the cost. The trial Court by the order dated 22-10-1983 allowed the application and directed the plaintiffs to deposit Rs. 60. Against the order dated 22-10-1983 a revision was filed by the respondents. The revisional Court vide its order dated 5-7-1984 allowed the revision by setting aside the order of the trial Court by which the application of the plaintiff-petitioners for condoning the delay in deposit of the cost was allowed. This writ petition has been filed by the petitioners challenging the order dated 5-7-1984. 4. I have heard the Counsel for the petitioners and perused the record. 5. This writ petition has been filed by the petitioners challenging the order dated 5-7-1984. 4. I have heard the Counsel for the petitioners and perused the record. 5. The revisional Court vide its order dated 5-7-1984 took the view that extension of time for depositing the cost could not have been made by the trial Court and the order of the trial Court extending the time was not within jurisdiction. The revisional Court held that the time of 15 days for payment of cost granted by the learned Special Judge could have been extended only by appellate Court and not by the trial Court. 6. One of the issue which has arisen in the present case is as to whether the trial Court had acted within its jurisdiction in extending the period for depositing of the cost. From the order, of the appellate Court dated 29-11-1982, it is clear that appellate Court set aside the order of the trial Court rejecting the restoration application and further directed that restoration application is allowed on payment of Rs. 30 as cost to the respondents to be paid within 15 days. The appellate Court further said that Misc. Case No. 38 of 1981 is restored to its original number. The operative portion of the order dated 29-11-1982 is extracted below: "the appeal is allowed and the order under appeal is set aside. Application 4-C for restoration of Misc. Case No. 38 of 1981 is allowed on payment of Rs. 30 as costs to the respondents which shall be paid within 15 days and Misc. Case No. 38 of 1981 is restored to its original number. Let the record be sent back to the learned trial Court. " 7. The consequence of the order dated 29-11-1982 was that the order of trial Court rejecting the restoration application stood set aside and the restoration application and Misc. Case No. 38 of 1981 was restored. The order further required payment of cost of Rs. 30 within 15 days. In the order itself the appellate Court further directed the record of the case to be sent back to the trial Court. In consequence of the order dated 29-11-1982 the record of the case stood transmitted to the trial Court where the Misc. Case No. 38 of 1981 was directed to proceed. 8. 30 within 15 days. In the order itself the appellate Court further directed the record of the case to be sent back to the trial Court. In consequence of the order dated 29-11-1982 the record of the case stood transmitted to the trial Court where the Misc. Case No. 38 of 1981 was directed to proceed. 8. In AIR 1960 Andhra Pradesh 271 (V 47 C 83) Mareddi Venkata Rami Reddy v. Mareddi Adinarayana Reddy & Ors. , the Division Bench considered Section 148 of the Civil Procedure Code and held that when the appellate Court granted a fresh period of three months to the successful plaintiff to deposit the balance of the purchase money from the date of its judgment and the plaintiff filed a petition before the trial Court for extension of time, the trial Court was entitled to consider the application for extension of time. It was held in paragraph-4 which is quoted below: "it would thus appear that, though we had fixed a fresh period in our judgment while disposing of A. S. No. 627 of 1954, the power of the trial Court is still intact to consider the question of extension in the circumstances as mentioned in the affidavits filed in support of the petition. In these circumstances, we need not go into the larger question whether it is open to the appellate Court to extend further time in the present circumstances. " 9. Shri Srikant, learned Counsel for the respondents has placed reliance on Division Bench judgment of this Court reported in 1998 (2) JCLR 315 (All) : 1998 JIR 712 (All) : 1998 (33) Allahabad Law Reports 591, Allahabad Development Authority v. Saifuddin & Ors. , in which the Division Bench has laid down that it is only the Court which has passed the order who can exercise jurisdiction under Section 148 Code of Civil Procedure for extension of time. 10. In the facts and circumstances of the present case, it is not necessary to dwell on the above submission since the present case can be decided on another point. From the operative portion of the judgment dated 29-11-1982 of the appellate Court as extracted above, it is clear that appeal was allowed and the order under appeal was set-aside. Application 4-C for restoration of Misc. Case No. 38 of 1981 was allowed on payment of Rs. 30 as cost. From the operative portion of the judgment dated 29-11-1982 of the appellate Court as extracted above, it is clear that appeal was allowed and the order under appeal was set-aside. Application 4-C for restoration of Misc. Case No. 38 of 1981 was allowed on payment of Rs. 30 as cost. The appeal was filed against the order dated 24-5- 1982 of the trial Court by which the trial Court rejected the application 4-C filed by plaintiff to recall the order dismissing the Misc. Case No. 38 of 1981 which was filed for restoration of the suit dismissed in default on 28-3-1981. Appellate order is in two part. By first part, the appeal was allowed and the impugned order of the trial Court dated 24-5-1982 was set-aside. The setting aside of the order dated 24-5-1982 was not conditional. The second part of the order was to the effect that application 4-C for restoration of Misc. Case No. 38 of 1981 was allowed on payment of cost of Rs. 30. From the perusal of tenor of the appellate order dated 29-11-1982 it does not appear that payment of cost of Rs. 30 was pre-condition for restoration of Misc. Case No. 38 of 1981. However, even if it is assumed that due to non-payment of cost of Rs. 30 within the time allowed by the appellate Court, restoration application cannot be treated to be allowed, the consequences would be that restoration application stood revived on the file. The order of trial Court dated 24-5-1982 having been set-aside and in event it is accepted that due to non-payment of cost, restoration cannot be held to be allowed, the result would be that restoration application for recall of the order dated 24-5-1982 revived. The appellate Court in its judgment dated 29-11-1982 has recorded clear findings that sufficient cause was made out for recall of the order dated 24-5-1982. The findings of the appellate Court to this effect are contained in paragraph- 4 of the judgment which is extracted below: "a perusal of the application 4-C as well as affidavit filed in support of this application would go to show that it was specially alleged in the application and deposed in the affidavit that one of the applicants namely Bal Krishna had been doing pairvi on behalf of the appellants and Bal Krishna fell ill a day before the date fixed for disposal of Misc. Case No. 38/81 and the other applicants had gone out. There was an affidavit filed in support of the allegations stated above. The respondents did not file any counter- affidavit and thus, the uncontroverted affidavit of Ram Krishna to the effect that Bal Krishna was doing pairvi on behalf of the applicants and this Bal Krishna fell ill a day before the date fixed for hearing of Misc. Case No. 38/81, unless and until this allegation was controverted there was no occasion for disbelieving the affidavit of Ram Krishna. Therefore, the question of filing medical certificate did not arise. So far as the second ground is concerned the order itself shows that the learned trial Court excepted one of the applicants at least to do pairvi of that case and he failed to take notice of the fact that the applicant Bal Krishna, one of the applicants, had fallen ill and he could not attend the Court and the other applicants were out of their village. The applicants had thus, made out a sufficient ground for restoration of misc. case No. 38 of 1981 and the trial Court could have imposed some costs to adequately compensate the o. ps (respondents ). " 11. From perusal of above finding, it is clear that appellate Court clearly held that there was sufficient cause for allowing the application 4-C. The appellate Court also observed that trial Court ought to have restored the Misc. Case No. 38 of 1981 and could have imposed some cost to adequately compensate the respondents. From the above findings of appellate Court, it is clear that cost awarded by the appellate Court was only compensatory in nature. 12. In view of above discussion without entering into the question as to whether the trial Court could have granted extension of time for deposit of cost, the application 4-C stood revived by virtue of the judgment of the appellate Court setting aside the order dated 25-4-1982. The trial Court did not proceed to consider application 4-C on merits in view of it having allowed extension of time to deposit the cost. From paragraph-14 of the rejoinder affidavit, it has been stated that the respondents have knowledge that Rs. sixteen (wrongly mentioned instead of sixty) has been deposited by the order of the Court. The trial Court did not proceed to consider application 4-C on merits in view of it having allowed extension of time to deposit the cost. From paragraph-14 of the rejoinder affidavit, it has been stated that the respondents have knowledge that Rs. sixteen (wrongly mentioned instead of sixty) has been deposited by the order of the Court. To direct the trial Court to proceed to pass orders on application 4c on merits will further delay the proceedings of the suit which has been delayed due to the unfortunate litigation regarding a trivial matter of deposits of cost. The appellate Court in its judgment dated 29-11-1982 recorded clear finding that sufficient ground was made for allowing the application 4-C. No useful purpose will be served by directing the trial Court to again pass formal order on application 4-C. 13. Apex Court in several cases has laid down that the jurisdiction under Article 226 and Article 227 of the Constitution is to be exercised for advancing justice and not to thwart. The Apex Court in 2002 (1) Supreme Court 100, Roshan Deen v. Preeti Lal, held that - "time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it (vide State of U. P. v. District Judge, Unnao ). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The lookout of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law. " 14. In view of above, this Court is not again directing the trial Court to pass order on application 4-C and the said application is being allowed. The trial Court is further directed to proceed to hear the Misc. Case No. 38 of 1981 expeditiously preferably within a period of three months from the date of production of certified copy of this order. 15. The writ petition is allowed with cost to the above extent. Petition allowed. .